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The Federalist No. 37

Concerning the Difficulties of the Convention in Devising a Proper Form of
Government

Daily AdvertiserFriday, January 11, 1788 [James Madison]

To the People of the State of New York:

IN REVIEWING
the defects of the existing Confederation, and showing that they cannot be
supplied by a government of less energy than that before the public, several of
the most important principles of the latter fell of course under consideration.
But as the ultimate object of these papers is to determine clearly and fully the
merits of this Constitution, and the expediency of adopting it, our plan cannot
be complete without taking a more critical and thorough survey of the work of
the convention, without examining it on all its sides, comparing it in all its
parts, and calculating its probable effects. That this remaining task may be
executed under impressions conducive to a just and fair result, some reflections
must in this place be indulged, which candor previously suggests.

It is a misfortune, inseparable from human affairs, that
public measures are rarely investigated with that spirit of moderation which is
essential to a just estimate of their real tendency to advance or obstruct the
public good; and that this spirit is more apt to be diminished than promoted, by
those occasions which require an unusual exercise of it. To those who have been
led by experience to attend to this consideration, it could not appear
surprising, that the act of the convention, which recommends so many important
changes and innovations, which may be viewed in so many lights and relations,
and which touches the springs of so many passions and interests, should find or
excite dispositions unfriendly, both on one side and on the other, to a fair
discussion and accurate judgment of its merits. In some, it has been too evident
from their own publications, that they have scanned the proposed Constitution,
not only with a predisposition to censure, but with a predetermination to
condemn; as the language held by others betrays an opposite predetermination or
bias, which must render their opinions also of little moment in the question. In
placing, however, these different characters on a level, with respect to the
weight of their opinions, I wish not to insinuate that there may not be a
material difference in the purity of their intentions. It is but just to remark
in favor of the latter description, that as our situation is universally
admitted to be peculiarly critical, and to require indispensably that something
should be done for our relief, the predetermined patron of what has been
actually done may have taken his bias from the weight of these considerations,
as well as from considerations of a sinister nature. The predetermined
adversary, on the other hand, can have been governed by no venial motive
whatever. The intentions of the first may be upright, as they may on the
contrary be culpable. The views of the last cannot be upright, and must be
culpable. But the truth is, that these papers are not addressed to persons
falling under either of these characters. They solicit the attention of those
only, who add to a sincere zeal for the happiness of their country, a temper
favorable to a just estimate of the means of promoting it.

Persons of this character will proceed to an examination
of the plan submitted by the convention, not only without a disposition to find
or to magnify faults; but will see the propriety of reflecting, that a faultless
plan was not to be expected. Nor will they barely make allowances for the errors
which may be chargeable on the fallibility to which the convention, as a body of
men, were liable; but will keep in mind, that they themselves also are but men,
and ought not to assume an infallibility in rejudging the fallible opinions of
others.

With equal readiness will it be perceived, that besides
these inducements to candor, many allowances ought to be made for the
difficulties inherent in the very nature of the undertaking referred to the
convention.

The novelty of the undertaking immediately strikes us. It
has been shown in the course of these papers, that the existing Confederation is
founded on principles which are fallacious; that we must consequently change
this first foundation, and with it the superstructure resting upon it. It has
been shown, that the other confederacies which could be consulted as precedents
have been vitiated by the same erroneous principles, and can therefore furnish
no other light than that of beacons, which give warning of the course to be
shunned, without pointing out that which ought to be pursued. The most that the
convention could do in such a situation, was to avoid the errors suggested by
the past experience of other countries, as well as of our own; and to provide a
convenient mode of rectifying their own errors, as future experiences may unfold
them.

Among the difficulties encountered by the convention, a
very important one must have lain in combining the requisite stability and
energy in government, with the inviolable attention due to liberty and to the
republican form. Without substantially accomplishing this part of their
undertaking, they would have very imperfectly fulfilled the object of their
appointment, or the expectation of the public; yet that it could not be easily
accomplished, will be denied by no one who is unwilling to betray his ignorance
of the subject. Energy in government is essential to that security against
external and internal danger, and to that prompt and salutary execution of the
laws which enter into the very definition of good government. Stability in
government is essential to national character and to the advantages annexed to
it, as well as to that repose and confidence in the minds of the people, which
are among the chief blessings of civil society. An irregular and mutable
legislation is not more an evil in itself than it is odious to the people; and
it may be pronounced with assurance that the people of this country, enlightened
as they are with regard to the nature, and interested, as the great body of them
are, in the effects of good government, will never be satisfied till some remedy
be applied to the vicissitudes and uncertainties which characterize the State
administrations. On comparing, however, these valuable ingredients with the
vital principles of liberty, we must perceive at once the difficulty of mingling
them together in their due proportions. The genius of republican liberty seems
to demand on one side, not only that all power should be derived from the
people, but that those intrusted with it should be kept in independence on the
people, by a short duration of their appointments; and that even during this
short period the trust should be placed not in a few, but a number of hands.
Stability, on the contrary, requires that the hands in which power is lodged
should continue for a length of time the same. A frequent change of men will
result from a frequent return of elections; and a frequent change of measures
from a frequent change of men: whilst energy in government requires not only a
certain duration of power, but the execution of it by a single hand.

How far the convention may have succeeded in this part of
their work, will better appear on a more accurate view of it. From the cursory
view here taken, it must clearly appear to have been an arduous part.

Not less arduous must have been the task of marking the
proper line of partition between the authority of the general and that of the
State governments. Every man will be sensible of this difficulty, in proportion
as he has been accustomed to contemplate and discriminate objects extensive and
complicated in their nature. The faculties of the mind itself have never yet
been distinguished and defined, with satisfactory precision, by all the efforts
of the most acute and metaphysical philosophers. Sense, perception, judgment,
desire, volition, memory, imagination, are found to be separated by such
delicate shades and minute gradations that their boundaries have eluded the most
subtle investigations, and remain a pregnant source of ingenious disquisition
and controversy. The boundaries between the great kingdom of nature, and, still
more, between the various provinces, and lesser portions, into which they are
subdivided, afford another illustration of the same important truth. The most
sagacious and laborious naturalists have never yet succeeded in tracing with
certainty the line which separates the district of vegetable life from the
neighboring region of unorganized matter, or which marks the ermination of the
former and the commencement of the animal empire. A still greater obscurity lies
in the distinctive characters by which the objects in each of these great
departments of nature have been arranged and assorted.

When we pass from the works of nature, in which all the
delineations are perfectly accurate, and appear to be otherwise only from the
imperfection of the eye which surveys them, to the institutions of man, in which
the obscurity arises as well from the object itself as from the organ by which
it is contemplated, we must perceive the necessity of moderating still further
our expectations and hopes from the efforts of human sagacity. Experience has
instructed us that no skill in the science of government has yet been able to
discriminate and define, with sufficient certainty, its three great provinces
the legislative, executive, and judiciary; or even the privileges and powers of
the different legislative branches. Questions daily occur in the course of
practice, which prove the obscurity which reins in these subjects, and which
puzzle the greatest adepts in political science.

The experience of ages, with the continued and combined
labors of the most enlightened legislatures and jurists, has been equally
unsuccessful in delineating the several objects and limits of different codes of
laws and different tribunals of justice. The precise extent of the common law,
and the statute law, the maritime law, the ecclesiastical law, the law of
corporations, and other local laws and customs, remains still to be clearly and
finally established in Great Britain, where accuracy in such subjects has been
more industriously pursued than in any other part of the world. The jurisdiction
of her several courts, general and local, of law, of equity, of admiralty, etc.,
is not less a source of frequent and intricate discussions, sufficiently
denoting the indeterminate limits by which they are respectively circumscribed.
All new laws, though penned with the greatest technical skill, and passed on the
fullest and most mature deliberation, are considered as more or less obscure and
equivocal, until their meaning be liquidated and ascertained by a series of
particular discussions and adjudications. Besides the obscurity arising from the
complexity of objects, and the imperfection of the human faculties, the medium
through which the conceptions of men are conveyed to each other adds a fresh
embarrassment. The use of words is to express ideas. Perspicuity, therefore,
requires not only that the ideas should be distinctly formed, but that they
should be expressed by words distinctly and exclusively appropriate to them. But
no language is so copious as to supply words and phrases for every complex idea,
or so correct as not to include many equivocally denoting different ideas. Hence
it must happen that however accurately objects may be discriminated in
themselves, and however accurately the discrimination may be considered, the
definition of them may be rendered inaccurate by the inaccuracy of the terms in
which it is delivered. And this unavoidable inaccuracy must be greater or less,
according to the complexity and novelty of the objects defined. When the
Almighty himself condescends to address mankind in their own language, his
meaning, luminous as it must be, is rendered dim and doubtful by the cloudy
medium through which it is communicated.

Here, then, are three sources of vague and incorrect
definitions: indistinctness of the object, imperfection of the organ of
conception, inadequateness of the vehicle of ideas. Any one of these must
produce a certain degree of obscurity. The convention, in delineating the
boundary between the federal and State jurisdictions, must have experienced the
full effect of them all.

To the difficulties already mentioned may be added the
interfering pretensions of the larger and smaller States. We cannot err in
supposing that the former would contend for a participation in the government,
fully proportioned to their superior wealth and importance; and that the latter
would not be less tenacious of the equality at present enjoyed by them. We may
well suppose that neither side would entirely yield to the other, and
consequently that the struggle could be terminated only by compromise. It is
extremely probable, also, that after the ratio of representation had been
adjusted, this very compromise must have produced a fresh struggle between the
same parties, to give such a turn to the organization of the government, and to
the distribution of its powers, as would increase the importance of the
branches, in forming which they had respectively obtained the greatest share of
influence. There are features in the Constitution which warrant each of these
suppositions; and as far as either of them is well founded, it shows that the
convention must have been compelled to sacrifice theoretical propriety to the
force of extraneous considerations.

Nor could it have been the large and small States only,
which would marshal themselves in opposition to each other on various points.
Other combinations, resulting from a difference of local position and policy,
must have created additional difficulties. As every State may be divided into
different districts, and its citizens into different classes, which give birth
to contending interests and local jealousies, so the different parts of the
United States are distinguished from each other by a variety of circumstances,
which produce a like effect on a larger scale. And although this variety of
interests, for reasons sufficiently explained in a former paper, may have a
salutary influence on the administration of the government when formed, yet
every one must be sensible of the contrary influence, which must have been
experienced in the task of forming it.

Would it be wonderful if, under the pressure of all these
difficulties, the convention should have been forced into some deviations from
that artificial structure and regular symmetry which an abstract view of the
subject might lead an ingenious theorist to bestow on a Constitution planned in
his closet or in his imagination? The real wonder is that so many difficulties
should have been surmounted, and surmounted with a unanimity almost as
unprecedented as it must have been unexpected. It is impossible for any man of
candor to reflect on this circumstance without partaking of the astonishment. It
is impossible for the man of pious reflection not to perceive in it a finger of
that Almighty hand which has been so frequently and signally extended to our
relief in the critical stages of the revolution.

We had occasion, in a former paper, to take notice of the
repeated trials which have been unsuccessfully made in the United Netherlands
for reforming the baneful and notorious vices of their constitution. The history
of almost all the great councils and consultations held among mankind for
reconciling their discordant opinions, assuaging their mutual jealousies, and
adjusting their respective interests, is a history of factions, contentions, and
disappointments, and may be classed among the most dark and degraded pictures
which display the infirmities and depravities of the human character. If, in a
few scattered instances, a brighter aspect is presented, they serve only as
exceptions to admonish us of the general truth; and by their lustre to darken
the gloom of the adverse prospect to which they are contrasted. In revolving the
causes from which these exceptions result, and applying them to the particular
instances before us, we are necessarily led to two important conclusions. The
first is, that the convention must have enjoyed, in a very singular degree, an
exemption from the pestilential influence of party animosities the disease most
incident to deliberative bodies, and most apt to contaminate their proceedings.
The second conclusion is that all the deputations composing the convention were
satisfactorily accommodated by the final act, or were induced to accede to it by
a deep conviction of the necessity of sacrificing private opinions and partial
interests to the public good, and by a despair of seeing this necessity
diminished by delays or by new experiments.